09-4153-pr
    Levola v. Fischer



                        UNITED STATES COURT OF APPEALS
                            FOR THE SECOND CIRCUIT

                               SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.      CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.        WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A
PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.

         At a stated term of the United States Court of Appeals for
    the Second Circuit, held at the Daniel Patrick Moynihan United
    States Courthouse, 500 Pearl Street, in the City of New York, on
    the 14th day of December, two thousand ten.

    PRESENT:
              WILFRED FEINBERG,
              BARRINGTON D. PARKER,
              RICHARD C. WESLEY,
                   Circuit Judges.
    __________________________________________

    Mark W. Levola,

                 Plaintiff-Appellant,

                 v.                                         09-4153-pr

    Brian Fischer, Commissioner, et al.,

              Defendants-Appellees.
    __________________________________________

    FOR APPELLANT:           Mark W. Levola, pro se, Sonyea, NY.

    FOR APPELLEES:           Martin A. Hotvet, Assistant Solicitor
                             General, Albany, NY, for Andrew M. Cuomo,
                             Attorney General of the State of New York;
                             Barbara D. Underwood, Solicitor General,
                             Albany, NY.
Appeal from an order of the United States District Court for the

Northern District of New York (McAvoy, J.)

     UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the order of the district court be AFFIRMED.

     Appellant Mark W. Levola, pro se and incarcerated, appeals

the district court’s order denying his motion for injunctive

relief.   We assume the parties’ familiarity with the underlying

facts, the procedural history of the case, and the issues on

appeal, and repeat them only where necessary below.

     We have jurisdiction over this interlocutory appeal because

Levola challenges the district court’s denial of his motion for

injunctive relief.     See 28 U.S.C. § 1292(a)(1) (“[T]he courts of

appeals shall have jurisdiction of appeals from . . .

[i]nterlocutory orders of the district courts . . . refusing . .

. injunctions.”); accord Lynch v. City of New York, 

,

98 (2d Cir. 2009).   We review the district court’s denial of a

preliminary injunction for abuse of discretion.     See Alleyne v.

N.Y. State Educ. Dep’t, 

, 100 (2d Cir. 2008).

Ordinarily, “a party seeking a preliminary injunction [must] show

(a) irreparable harm and (b) either (1) likelihood of success on

the merits or (2) sufficiently serious questions going to the

merits to make them a fair ground for litigation and a balance of

hardships tipping decidedly toward the party requesting the

preliminary relief.”     Citigroup Global Mkts., Inc. v. VCG Special


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Opportunities Master Fund Ltd., 

, 35 (2d Cir. 2010)

(internal quotations omitted).   A party, like Levola, however,

who seeks “a ‘mandatory’ injunction — that is . . . an injunction

that will alter rather than maintain the status quo — . . . must

meet the more rigorous standard of demonstrating a ‘clear’ or

‘substantial’ likelihood of success on the merits.”   Doninger v.

Niehoff, 

, 47 (2d Cir. 2008) (citation omitted).

     Levola sought an order from the district court compelling

the Defendants to admit him as a patient at a specific hospital.

The district court denied his motion, finding that Levola had

failed to demonstrate both irreparable harm and a likelihood of

success on the merits.   We agree.

     Accepting as true the allegations in Levola’s complaint,

Levola did not allege any facts to suggest that he faced a

serious and immediate danger of irreparable harm.   Indeed, Levola

claimed that he began receiving deficient medical care in 2004,

but he did not file his complaint until 2009, well after many of

the events he identified had occurred.   See Hirschfeld v. Bd. of

Elections, 

, 39 (2d Cir. 1993) (holding that a party’s

delay in seeking an injunctive relief “severely undermines [its]

argument that absent a stay irreparable harm w[ill] result”); see

also Majorica, S.A. v. R.H. Macy & Co., 

, 8 (2d Cir.

1985) (finding that plaintiff had failed to show irreparable harm

because it waited seven months to seek an injunction).


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     Therefore, the district court appropriately concluded that

Levola failed to show that he faced an immediate danger of

irreparable harm, and we affirm the district court’s order on

that basis.   See Grand River Enter. Six Nations, Ltd. v. Pryor,

, 67-68 (2d Cir. 2007) (affirming lower court’s denial

of preliminary injunction because movant failed to demonstrate

irreparable injury).

     For the foregoing reasons, the order of the district court

is hereby AFFIRMED.
                               FOR THE COURT:
                               Catherine O’Hagan Wolfe, Clerk




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